Turning a Blind Eye to Deaf Ears: The Fifth Circuit Examines an LHWCA Claim for Hearing Loss in Ceres Gulf, Inc. v. Director, Office of Worker’s Compensation Programs

Michael Dehart | Note

Claimant Norris Plaisance began working as a longshoreman in the 1950s. From 1982 until his retirement in 1988, Plaisance worked for petitioner Ceres Gulf. He initially noticed loss of his hearing in 1976 and subsequently obtained hearing aids. Plaisance was diagnosed with both conductive and sensorineural hearing loss upon his retirement from Ceres Gulf in 1988. Plaisance filed a claim against Ceres Gulf pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA) in March 2006. The administrative law judge’s (ALJ) initial decision found in favor of Ceres Gulf. Although the ALJ concluded that Plaisance invoked the LHWCA section 20(a) presumption that his hearing loss was work-related, the ALJ held that Ceres Gulf successfully rebutted the presumption with substantial evidence. Reviewing the totality of evidence provided by both parties, the ALJ held that Plaisance’s injury was unrelated to his employment with Ceres Gulf and accordingly denied the request for LHWCA benefits.

Plaisance appealed to the Benefits Review Board (BRB). The BRB vacated and remanded the decision of the ALJ. The BRB ruled that some of the evidence provided by Ceres Gulf could not be considered substantial evidence for the purpose of rebutting the section 20(a) presumption. The BRB held that generalized population information and sound level surveys presented by Ceres Gulf’s expert must be excluded as a matter of law. According to the generalized population information, Plaisance’s hearing was better than average for someone of his age. Likewise, the sound level surveys indicated that other longshore facilities similar to the one where Plaisance worked for Ceres Gulf did not produce high enough noise levels to cause hearing loss. The BRB held that both studies were legally irrelevant to establishing a successful rebuttal of Plaisance’s testimony concerning his exposure to injurious noise levels and therefore must be excluded. After review, the BRB remanded the case to the ALJ with instructions to exclude the surveys when determining whether Ceres Gulf successfully rebutted the section 20(a) presumption with substantial evidence. On remand, the ALJ found for Plaisance. Deprived of the evidence that the BRB required the ALJ to exclude, the ALJ found that Ceres Gulf failed to rebut Plaisance’s claim. The BRB affirmed and revised the ALJ’s decision on appeal.

Ceres Gulf appealed to the United States Court of Appeals for the Fifth Circuit. On appeal, Ceres Gulf claimed that the BRB erred in prohibiting the ALJ from considering the sound level surveys and generalized population studies offered by Ceres Gulf’s expert witness as evidence to rebut the section 20(a) presumption. Ceres Gulf also claimed that the BRB applied an incorrect burden of proof by requiring them to rule out any causal connection between the injury and Plaisance’s employment. The court agreed with Ceres Gulf and accordingly denied Plaisance compensation under the LHWCA. The Fifth Circuit held that the BRB erred in excluding the two surveys and improperly placing a higher burden on Ceres Gulf to demonstrate that the injury was not work-related. Ceres Gulf, Inc. v. Director, Office of Worker’s Compensation Programs, 683 F.3d 225, 232, 2012 AMC 1753, 1763 (5th Cir. 2012).